4/19/2010 @ 12:03PM

Progressivism Remains Off Key

There is a delicious irony in the Center for American Progress choosing Tax Day, April 15, 2010, to publish its new defense of the progressive intellectual tradition in the U.S. The deep intellectual confusions of that movement are caught in its opening salvo, which quotes a famous aphorism of Justice Oliver Wendell Holmes: Taxes are the price that we pay for a civilized society.

Ironically, the CAP study links that quotation to the U.S. Department of Treasury Web site, which has the good sense to observe that the Holmes quotation tells us nothing about the form or levels of taxation. Neither does CAP, it turns out. But the issue matters. Treasury reported that when Holmes penned those words in 1902 the tax burden stood at 1.3% of GDP. By 2000 the tax burden exceeded over 20%, a number that looks almost blissfully low in light of the massive new Obama taxes. Some taxes are necessary for civilization, but surely every tax, no matter how dumb, is not.

As I read through the first of the three CAP reports, that by John Halpin and Conor P. Williams on the “Progressive Intellectual Tradition in America,” I found no systematic defense of our current high rates of taxation. Instead our authors dished out a cooks tour of the major tenets of the progressive movement, which attacked any traditional theory of natural rights (which date back to Roman times), without saying where and why it broke down, or what should have been done to fix it. Nor do our authors explain what was wanting in the classical liberal efforts to use the antitrust law to counteract horizontal restraints on trade, or rate regulation to deal with the problem of large network monopoly industries, such as railroads and communication, in which competitive markets are not possible.

Instead they string together extensive high-falutin quotations from writers spanning Charles Saunders Peirce, to William James, to John Dewey to clinch the case for the superiority of the progressive model. Pity that not one of those distinguished authors knows anything about how any major social institution operates. Thus Deweys supposed pragmatic, down to earth assessment of the moribund classical liberal synthesis omits any reference to falling accident rates, higher incomes and longer life expectancy across the board that occurred just as he was writing. In fact, progressive writers always showed remarkably little interest in tracing out the practical consequences they claim matter most.

In a recent Forbes column I reviewed the famous, but inept, brief that Louis Brandeis wrote in Muller v. Oregon, which helped persuade Justice Brewer (a conservative no less) to sustain an Oregon minimum wage law for women only–which had as its practical consequence the prompt dismissal of the very women whom the law was supposed to protect. The constant progressive insistence that somehow the laws of supply and demand dont apply to large corporations remains one of their great intellectual weaknesses that the passage of time has not cured.

Instead, the progressive remained trapped in Deweys misguided mindset that our basic conception of liberty has to be defined anew in each generation. All classical liberals agree that Dewey was correct when he noted that historically liberty requires freedom from chattel slavery, serfdom and oppressive governments. But what, pray tell, does he mean by liberation from material insecurity and from the coercions and repressions that prevent multitudes from the participation in the vast cultural resources that are at hand?

Beats me. Dewey offers no acknowledgement of the entrepreneurs–John D. Rockefeller, Leland Stanford, Johns Hopkins–who helped created these vast resources and founded great universities out of their wealth. Nor is he aware that what he regards as a release from material insecurity almost always requires some extensive transfer program, which in the short term may have its desired effects, but in the long run must always fail. Think Social Security, Medicare and pension plans for state union employees. Quite simply, Dewey (like modern progressives) has no awareness of the risk that redistributive taxes will reduce overall level of wealth and drive out the voluntary forms of redistribution that dollar for dollar have a far higher rate of return than any government program.

Deweys aimless and imprecise reference to coercions and repressions has no discernible content when divorced from the traditional concerns with force and fraud. But redefine an old term and its new loose meaning will lead you astray, so that in short order the refusal of an employer to deal with a monopoly union becomes magically transformed into an interference with their rights of voluntary association. These wooly conceptions bring in their wake monopoly unions, agricultural cartels and minimum wage laws–the last of which may now apply to summer interns. But of these risks, our authors breathe not a word. The dangers of faction, against which the framers sought to guard, receive scant attention in their writings.

It is all too tempting to attack classical liberals for their outdated attachment to natural law, for supposed extreme individualism and for their rigid constitutional conceptions. But todays progressive legacy–the creaking structures of government and both the federal and state level–makes you want to go out and attend the nearest Tea Party rally.

Richard A. Epstein is the James Parker Hall Distinguished Service Professor of Law, the University of Chicago; the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, and a visiting professor at New York University Law School. He writes a weekly column for Forbes.com.